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Get out of jail, free

Op-ed: Why is Maryland continuing to lock up poor, low-risk offenders before trial?

Antonio Muhammad sat in a Baltimore jail for weeks last year on $2,500 bail after being swept up in the riot-related arrests on charges of burglary. If it weren't for a crowdfunding effort to help people like him afford bail and the efforts of his court-appointed attorney, Kerri Cohen, the 20 year old with no criminal record might have sat there for 11 months — until prosecutors dropped his case this spring — simply because he was unable to buy his way out.

His situation illustrates what's wrong with Maryland's asset-based bail system: It too often leaves low-income people — often those of color (Mr. Muhammad is black, according to court records) — who are charged with non-violent crimes incarcerated pending trial, where they face the prospect of losing their jobs, housing and relationships. And it does little to ensure community safety. Even bails in the multi-million-dollar range can't contain high-risk defendants with deep pockets; they can secure their release through bail bonds businesses by putting down as little as 1 percent.

This week, the Abell Foundation became the latest institution to formally call for replacing Maryland's cash bail system with one that determines release not on what defendants can afford, but on the likelihood they'll return to court as directed and won't endanger the community while free. The foundation adds its voice to the national Justice Policy Institute and two state groups, which recommended the same in 2012, 2013 and 2014 respectively. The Sun's editorial board has also been beating that drum for several years.

The recommendations and the reasoning are largely the same from all proponents, but the report issued by the Abell Foundation goes a step beyond simply outlining necessary changes; it also lays out a multi-year path for their implementation with short-, middle- and long-term actions clearly defined. In other words, it has left the state no good reason to continue to ignore the advice. To do so amounts to a willful choice to keep locking up low-risk offenders before they're even tried at the expense of their well-being, the community good and taxpayers' wallets at a time when justice reform, particularly in Baltimore, is at the forefront of everyone's minds.

National entities, including the U.S. Department of Justice and the White House Council of Economic Advisors, have denounced cash bail as resulting in economic and racial disparities. And a bill introduced in the House this year, entitled the No Money Bail Act of 2016, would prohibit the use of cash bail in the federal system and prevent states that use it from receiving certain grants.

The House bill notes that 60 percent of those held in the nation's jails are awaiting trial — three quarters of them on non-violent charges — at an annual cost of about $14 billion (In Baltimore, it costs between $100 and $159 per day to hold someone pending trial; but only $2.50 per day to release them under pretrial services, according to a 2010 Justice Policy Institute report). Yet roughly half of the "most dangerous pre-trial detainees" are released without supervision.

"Throughout the nation, those with money can buy their freedom, while poor defendants remain incarcerated awaiting trial," the bill reads.

Recognizing this, several states, including Kentucky and Colorado, have already moved to minimize the use of bail and implement risk assessment programs; New Jersey is expected to follow suit beginning next year. And, according to Abell, officials in Alaska, Connecticut, Delaware, Maine, New York and Utah are calling for similar changes.

Maryland should be among those demanding a new process — especially in Baltimore, where bails for low risk defendants are generally twice as high as those set in Prince George's County and five times as high as those set in Montgomery County — given the recommendations of two state committees.

In December 2013, the "Task Force to Study the Laws and Policies Relating to Representation of Indigent Criminal Defendants by the Office of the Public Defender" (catchy, no?) recommended in its final report that "the use of secured, financial conditions of pretrial release (cash, property or surety bond) that require a low-risk defendant to pay some amount of money in order to obtain release, while permitting high-risk defendants with the resources to pay their bonds to leave jail unsupervised, be completely eliminated." The group, formed in May 2012 and made up of lawyers and public safety professionals, also recommended that a standardized risk-assessment tool be developed and implemented to determine who could be released on their own or under supervision, and who must be held pending trial.

A year (almost to the day) later, the Governor's Commission to Reform Maryland's Pretrial System issued the same recommendations, and in fact used the same language regarding the elimination of cash bail.

Yet nothing has changed.

And the non-violent Antonio Muhammads of the world have continued to languish in jail, while presumed innocent, at great personal expense. His charges were dropped and the evidence of them later expunged from the criminal records' system. But it's unlikely the memories of that time will ever disappear.

Tricia Bishop is The Sun's deputy editorial page editor. Her column runs every other Friday. Her email is tricia.bishop@baltsun.com; Twitter: @triciabishop.

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